[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Reijer Passchier and Alissa Verhagen review The Foundations and Traditions of Constitutional Amendment (Hart 2017), edited by Richard Albert, Xenophon Contiades and Alkmene Fotiadou]
–Reijer Passchier[*] and Alissa Verhagen[**]
I. The renaissance of an issue
The matter of constitutional change is one of the most difficult and challenging issues of modern constitutional law.[1] For instance, the question as to how difficult it should be to change a constitution was prominent during various constitutional conventions that were held at the end of the 18th and the early 19th centuries. Nevertheless, the matter of constitutional change in comparative constitutional law has always been a bit like the runt of the litter. Perhaps this is because the constitution that most comparativists take as a reference point – the constitution of the United States (US) -, has rarely been amended. The United States constitutional legislator adopted its last amendment, the 27th amendment in 1992; the penultimate amendment – the 26th – was adopted in 1971. What didn’t help the matter is that both amendments have not been of fundamental importance to the development of American constitutional law, as they concerned such important, but not truly fundamental matters, as the salary of the Congress and the electoral age respectively.
However, in the last two decades, a true renaissance of the study of comparative law of constitutional change has taken place.[2] This is partly because authors such as Bruce Ackerman and David Strauss resoundingly showed that major constitutional developments in the US, such as the New Deal and the Civil Rights Revolution, took place outside the amendment procedure of the US Constitution.[3] Because of these sweeping reinterpretations of American constitutional history, people in other countries started wondering whether ‘constitutional moments’ or ‘informal constitutional changes’ had taken place in their own area as well.[4]
Other factors also played a role in the renewed interest of comparative law researchers for constitutional change. The increased speed of social change and the need for constitutions to adapt to this in one way or another also played a part.[5] In other words, the time-honored constitutional challenge to connect stability and flexibility, progressiveness and conservatism as well as constitutionalism and democracy regained urgency.[6]
A final factor that was key in the revival of the study of constitutional change is the rise of the internet. Due to new information technology a huge amount of data became available in a short time about constitutional change in other jurisdictions than just the ‘usual suspect’ countries[7], that is, the countries which comparativists have traditionally researched.[8] So-called ‘Large N’ studies – these are studies which include a relatively large number of cases – on constitutional development challenged all sorts of myths in constitutional studies regarding the endurance of constitutions and the way constitutions evolve. For example, in 2009, Zach Elkins, Tom Ginsburg and James Melton revealed that the average lifespan of a constitution is merely 19 years.[9] This was quite a notable shock, especially to constitutionalists from countries where the constitution has been in place for decades (e.g. Germany, France and Japan) or even more than two centuries (the US and the Netherlands[10]). Thanks to the same authors, we also know that around 9 countries write a new constitution every year and about 30 countries fundamentally revise their constitution.[11] Through these and other pioneering studies, comparativists that had previously focused on the US, Germany and France were forced to review important presumptions in their work.
II. The foundations and traditions of constitutional review
The Foundations and Traditions of Constitutional Amendment has the ambition to guide the renaissance of constitutional change in comparative law. The collection is the result of a project in which an international group of scholars was invited to reveal driving forces behind constitutional revision, to theorize best practices and to identify the theoretical foundations of different types of constitutional change. In an instructive introduction ‘The State of the Art in Constitutional Amendment’, Richard Albert discusses what the comparative study of constitutional change has brought to date: mainly country specific studies.[12] These studies are indispensable when defining the research field, but it was time, as Albert rightly states, for a more thematic approach. Only a thematic approach, that is to say, an approach that does not focus on a specific country but on a topic or problem relating to constitutional change, can make the complexity of constitutional change in the world understandable. Indeed, to really understand the phenomenon, the practices and the doctrines of constitutional change, we need concepts that allow us to rise above national contexts and then use these insights again to reflect on national or supranational constitutional experiences. Although, in a general sense this project is far from finished, the authors of Foundations and Traditions have laid a helpful foundation for more research in the future.
In this piece we can only discuss a selection of the chapters included in Foundations and Traditions.
The first chapter of the book, ‘Amendment Power, Constituent Power, and Popular Sovereignty: Linking Unamendability and Amendment Procedures’, written by Yaniv Roznai, deals with the fascinating problem of ‘unconstitutional constitutional amendments.’ Roznai distinguishes between a ‘primary’ constitution-making power and a ‘secondary’ constitution-revising power. According to Roznai, the secondary constitution-revising power can be limited by substantive requirements that can be imposed on constitutional revision; the first power is unlimited by definition. In his chapter Roznai also develops a ‘spectrum theory’ with which he attempts to indicate when it is right to declare certain constitutional revisions unconstitutional. According to this theory, the more the democratic characteristics of the constitution-revising power correspond to the constitution-making power, the less the constitution-revising power must be bound by substantive demands and limits.
Roznai’s discourse is extremely rich and we advise everyone to take notice of his work. A critical note the reader can keep in mind is that Roznai’s approach mainly remains focused on constructing a legal doctrine and he hardly questions how a doctrine of unconstitutional constitutional amendments – a doctrine that aims to control fundamental political processes – interacts with its legal and political context.[13] In other words, Roznai barely questions what such a doctrine can do, while constitutional legislators who try to limit the constitutional-revising power must take into account that the forces that can come undone at this level will be exceedingly difficult to contain.[14]
In a next chapter entitled ‘Constitutional Sunrise’, Sofia Ranchordás discusses the workings and significance of entry clauses in constitutional contexts. She argues that, especially in post-conflict and divided societies, entry clauses may be important tools to prevent that ‘the future does not come too soon’ and that important transitional topics and aspirations, that are not realistic at the time the relevant constitution is written, cannot be promised to the people, yet remain on the constitutional agenda. The idea of entry clauses is currently still relatively unknown to constitutionalists, while such provisions might be powerful tools to guide the constitutional development of countries in a particular direction. For this reason, among others, Ranchordás chapter must be considered an important contribution to the literature on constitutional development.
A number of chapters later, Jurgen Goossens discusses the role of direct democracy in constitutional change in the United States. Goossens demonstrates that the amendment procedure of the US Constitution (Article V) leaves no room for direct democracy, in contrast to almost all revision procedures of the constitutions of the various federal states. Goossens discusses why this is so and argues for the introduction of mechanisms of direct democracy in the federal constitutional review procedure. According to Goossens, it would make sense to introduce such mechanisms, among other reasons because the American tradition of constitutional amendment has its roots in popular sovereignty.
Goossens’ discourse is passionate, creative and interesting. Goossens’ finding that, with the exception of one federal state’s constitution, all constitutions of the federal states have a constitutional referendum enshrined in the constitution, is nothing short of a discovery. Even the Americans themselves did not know this, probably because their education and research mainly focus on federal constitutional law and hardly on that of the federal states. A point of criticism we would have with Goossens, and with some other authors[15] for that matter, is that while arguing for democratizing the federal constitutional process, he does not account for the fact that the federal constitutional tradition of the US must not necessarily be understood as democratic, but perhaps also as republican (not in the daily political sense, but in the political-philosophical sense of the word).[16] And in the republican tradition, where not the will of the people, but notions such as freedom and autonomy of the individual are at the forefront, it is not illogical to leave the making of laws to a people’s representation instead of to the people themselves.
One other comment we have is that Goossens sees the states of the US as ‘laboratories’ for constitutional instruments such as constitutional referendums. You can learn a lot in the lab, that’s true. And the ‘lab perspective’ on constitutional instruments is an interesting perspective that we might also be able to use in European constitutional contexts to ‘test’ solutions to constitutional problems. Every lab technician knows, however, that what works in the lab does not necessarily do what it is supposed to do. This may also apply to the US, where states can still fairly safely tinker with their constitutional regulations without there being any real problems under the umbrella of a powerful, relatively centralized federal government based on solid constitutional foundations. The question is whether experiments in such sub-state laboratories are repeatable at a federal level.
The collection concludes with a chapter of Xenophon Contiades and Alkeme Fotiadou. This chapter argues that comparative constitutional change must be seen today as a distinct field of scholarship, and that this field provides a valuable conceptual lens through which constitutions, constitutional law and constitutionalism in general can be understood. With this statement, we can only agree wholeheartedly.[17] Through the study of constitutional change, in addition to the (legal-positivist) study of the current constitutional law in the ‘present’, we can better understand how constitutional law interacts with its context, what law can accomplish, what factors account for the functioning of the law and whether constitutional review procedures can also be replaced by other, perhaps more informal processes of constitutional development. A better understanding of what the law can do in different contexts can of course also lead to the development of more effective mechanisms to control, or at least channel, constitutional development into a desired direction.
III. Conclusion
The collection Foundations and Traditions contains fourteen other fascinating chapters on such topics as the role of interest groups in constitutional reform, constitutional endurance, the role of the people in constitutional reform and ‘constitutional politics’. We highly recommend these chapters. It is definitely worthwhile to read this coverage in its entirety. In addition to the above[18] cited volumes with country specific studies about constitutional change, this more thematic book is indeed what it aspires to be: a guide to the development of constitutional change as a full-fledged research field in global constitutional law. The editors of this collection succeeded in bringing together a group of top notch authors and creating a collection of which the whole is more than just the sum of its individual parts. The collection challenges researchers to reconsider presumptions regarding constitutional change in their own country and offers authors many leads and inspiration for further comparative law research into the development of constitutional rules, facts and ideas, and their mutual dynamics.
Suggested Citation: Reijer Passchier and Alissa Verhagen, Review of “The Foundations and Traditions of Constitutional Amendment”, Int’l J. Const. L. Blog, Apr. 4, 2018, at http://www.iconnectblog.com/2018/04/the-rise-of-comparative-constitutional-change
[*] dr. Reijer Passchier is a Senior Staff Member at the Netherlands Scientific Council for Government Policy and a Guest Lecturer and Researcher at Leiden University. For more information and contact details, see: www.reijerpasschier.nl.
[**] Alissa Verhagen is a bachelors student Tax Law at Tilburg University.
[1] W. Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order, Princeton University Press, 2007, p. 497 et seq.
[2] See for instance M. Andenas (ed.), The Creation and Amendment of Constitutional Norms, British Institute of International & Comparative Law, 2000. D. Oliver and C. Fusaro (eds.), How Constitutions Change: A Comparative Study, Portland: Hart Publishing, 2011. Xenophon Contiades (ed.), Engineering Constitutional Change, Routledge, 2013. S. Levinson (red.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment, Princeton: Princeton University Press, 1995.
[3] See for instance B. Ackerman, We The People: The Civil Rights Revolution, The Belknap Press of Harvard University Press, 2014. See also D. Strauss, ‘The Irrelevance of Constitutional Amendments’, Harvard Law Review, 114, 2001, 1457.
[4] For an overview of this literature, see: R. Passchier, Informal constitutional change: constitutional change without formal constitutional amendment in comparative perspective, (diss. Leiden), Amsterdam: Ipskamp Printing 2017, p. 8-11.
[5] T. Ginsburg and J. Melton, ‘Does the Constitutional Amendment Rule Matter at All?’, 13 International Journal of Constitutional Law 686, 2015, p. 688. William E. Scheuerman, ‘Constitutionalism in an age of speed’, 19 Constitutional Commentary 353, 2002.
[6] European Commission for Democracy Through Law (Venice Commission), Final Draft Report on Constitutional Amendment Procedures, CDL(2009)168, Study nr. 469/2008, Strasbourg 4 December 2009.
[7] Cf. R. Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law, Oxford University Press, Oxford, 2014, p. 4.
[8] See for instance: www.constituteproject.org.
[9] Z. Elkins et al., The Endurance of National Constitutions, Cambridge: Cambridge University Press 2009.
[10] G. Franco Ferrari et al, The Dutch Constitution beyond 200 Years: Tradition and Innovation in a Multilevel Legal Order, The Hague: Eleven International Publishing, 2018.
[11] Ginsburg & Melton 2015.
[12] See footnote 4.
[13] See: R. Passchier and M. Stremler, ‘Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision’, The Cambridge Journal of International and Comparative Law 5(2), 2016, p. 361 et seq.
[14] M. Loughlin, Foundations of Public Law, Oxford: Oxford University Press, 2010, p. 305.
[15] S. Levinson, Our Undemocratic Constitution: Where the Constitution goes wrong (and how we the people can correct it), Oxford: Oxford University Press, 2006.
[16] R. E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, Broadside Books, 2016.
[17] See R. Passchier, ‘Quasi-Constitutional Change Without Intent – A Response to Richard Albert’, Buffalo Law Review 65(5), 2017.
[18] See footnote 4.
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